Models of motherhood in the abortion debate - self-sacrifice versus self-defence

Politically, during that same time period, the problem of abortion has been deWned by pro-life activists as we would expect, but also by pro-choice advocates as we might not expect on th

Models of motherhood in the abortion debate:

self-sacrifice versus self-defence

Eileen McDonagh

Department of Political Science, Northeastern University, Boston, USA

The power of problem definition

Many political commentators argue that problem deWnition is the most important component of the policy formation process Problem deWnition is crucial because it deWnes how we Wrst identify public issues, which in turn

inXuences how we deWne appropriate solutions Over time, the initial way a problem is deWned then crystallizes policy debates, producing what can then become a very rigid framework, all but impossible to expand or modify (Rochefort and Cobb, 1994: vii, pp 4)

The abortion issue, particularly in the US, is a classic example of the power

of problem deWnition for determining not only policy outcomes for Ameri-can women, but also the crystallization of policy debates Constitutionally, in the course of nearly 30 years of Supreme Court reasoning, abortion rights have become rigidly deWned as a problem of decisional autonomy, that is, as a problem of privacy and choice Politically, during that same time period, the problem of abortion has been deWned by pro-life activists (as we would expect), but also by pro-choice advocates (as we might not expect) on the basis of a very traditional model of motherhood, one invoking cultural and ethical depictions of women as maternal, self-sacriWcing nurturers

The combination of deWning the problem of abortion rights constitu-tionally in terms of the privacy of choice and politically in terms of a traditional view of motherhood has produced a rigid, serious policy conse-quence – namely, failure to obtain access to abortion services for women in the form of public funding of abortions Correction of this policy conse-quence requires a redeWnition of the problem of abortion rights from both constitutional and political perspectives, which entails, as part of that

re-deWnition, a transformation of the traditional model of motherhood to include nontraditional elements To understand more clearly what is in-volved in this transformative process, let us review the current status of how a traditional model of motherhood underlies the current way the problem of abortion is deWned

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Problem definition: constitutionalism and politics

In the United States, the Due Process Clause of the Fourteenth Amendment

of the Constitution prohibits the state from depriving ‘any person of life, liberty, or property without due process of law’ This Due Process right of privacy has been interpreted by the Supreme Court to mean that a state may not interfere with a person’s choice about whom to marry, how to educate and raise one’s children, or the choice to use contraceptives When the

Supreme Court established the constitutional right to an abortion in Roe v Wade in 1973, it did so by ruling that the Due Process right to privacy was

‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’ without interference from the state This decision was a breakthrough for women’s rights because it immediately struck down nu-merous state laws that had severely limited procurement of an abortion (Ginsburg, 1985; Klarman, 1996)

However, in Roe, the Court also established that the fetus is a separate

entity from the woman The Court reasoned that because a pregnant woman

‘carries [potential life] within her’, she ‘cannot be isolated in her privacy’ and her ‘privacy is no longer sole’ As the Court put it, because a pregnant woman carries a fetus, ‘any right of privacy she possesses must be measured

accord-ingly’ As the Court stated in Roe, ‘the right of personal privacy includes the

abortion decision, but this right is not unqualiWed and must be considered against important state interests in regulation [including] the state interests

as to protection of prenatal life’ Thus, in Roe, the Court established that it

is constitutional for the state to protect the fetus from the moment of conception and that a pregnant woman’s right of privacy to make a choice to terminate pregnancy can be limited by, or balanced against, the state’s interest in protecting the fetus as a separate entity from the consequences of that choice Prior to viability, although the state may not prohibit an abortion per se, the state may protect the fetus by requiring restrictive regulations, such as 24-hour waiting periods and informed consent decrees, and by prohibiting the distribution of any information about abortion in publicly funded family planning clinics These policies are constitutional even in the case of an indigent woman suVering from a medically abnormal pregnancy that could cripple her for life What is more, law scholars concur that the Due Process foundation for abortion rights, as interpreted by the Court, means that it would be constitutional for a state to prohibit the use of public resources to assist a woman in obtaining an abortion, even if her pregnancy is subsequent to rape or incest, and even if her pregnancy threatens her with death

After the stage subsequent to viability, the state in promoting its interest in the potentiality of human life may not only prohibit state assistance in obtaining an abortion, but may also prohibit a woman from choosing an

abortion, ‘except where it is necessary for the preservation of the life or

health of the mother’ Thus, although Roe has proved resilient in the ensuing

decades for retaining the constitutional right to choose an abortion, deWning the problem of abortion rights in terms of privacy has proved completely inadequate for establishing a constitutional right to state assistance for obtaining one This is consistent – the Due Process right of privacy to be free

of government interference when making choices about one’s own life or reproductive options does not usually include a constitutional right to government assistance in exercising one’s choice Hence, the constitutional

right to choose to use contraceptives, as established in 1965 in Griswold, does

not include the constitutional right to government funding to purchase contraceptives Similarly, the constitutional right to choose whom to marry does not include a constitutional right to government funding of one’s wedding Nor does the constitutional right to choose what to read include the constitutional right to government funding to purchase books of one’s choice

Thus, the constitutional problem with using privacy and the Due Process Clause for deWning abortion rights is that a Due Process depiction of the abortion issue reinforces the Court’s disconnection between the constitu-tional right to an abortion and abortion funding Since the right to make a choice without government interference – such as the right to choose an abortion or whom to marry – does not include the right to government assistance in exercising that choice, there is little, if any, constitutional leverage to apply to the abortion access issue

When we turn to the political arena, we run into a similar dead-end to procuring access to an abortion, as a result of the problem deWnition of abortion The journalist William Saleten has followed the abortion debate for some years Based on his experience, he draws attention to the conservative political message developed not only by pro-life activists, but also by the pro-choice community over the last decade Starting at least in the mid-80s,

around the time of the Thornburgh decision, pro-choice activists became so

fearful that the right to an abortion would be overturned in court that they began to develop powerful conservative strategies with which to reach out to the American public

The conservative message, as Saleten analyses it, was premised on convey-ing a persuasive view of abortion rights that would be suitable for the mass media and for electoral campaigns As a consequence of this political goal, general issues about women’s rights were relegated to the sidelines of the message In their stead, issues were stressed that were easy for the mass public

to aYrm, such as the encroachment of big government As a result, the right

to an abortion came to be politically framed as the right to get the govern-ment out of your life; that is, the governgovern-ment should have nothing to do with your right to have an abortion This idea takes the form of bumper stickers,

such as ‘Get the state out of my uterus!’ However clever such bumper stickers might be, the problem with access to abortion in general and abortion funding in particular is that the goal is to get the government into women’s lives in the form of providing abortion services Thus, rather than getting the state out of a woman’s uterus, access to public funds, public facilities, and public personnel for abortion services involves getting the state into a woman’s uterus, so to speak The pro-choice strategy of politically deWning the abortion message to be getting the government out of women’s lives, therefore, is counterproductive as a claim for public funding of abortion services

The traditional model of motherhood and abortion rights

Underlying the problem deWnition of abortion rights is a traditional view of motherhood – one that rests upon a relational view of women, deWned in terms of an ethic of care, inclusive of a nurturing, if not a sacriWcial, relationship between mother and fetus Relying on the traditional model of motherhood to deWne the problem of abortion, however, does not give us the necessary arguments to justify public funding of abortions To gain for women state assistance in procuring abortion services, therefore, requires a redeWnition of the problem of abortion, one that draws upon a model of motherhood that incorporates non-traditional elements into the way women are envisioned when seeking an abortion Expanding the traditional model of motherhood that currently underlies the deWnition of abortion rights in the

US to include a non-traditional model of motherhood holds the promise of securing not only the constitutional right to an abortion, but also the constitutional right to abortion funding

To reframe the abortion debate to make it possible to secure a constitu-tional right to abortion funding, we must reconsider the central ethical and legal issue that haunts abortion policies – what justiWes killing the fetus? When we look more closely at the way pro-choice advocates answer that question when explaining why they support abortion rights or why they themselves procured an abortion, weWnd that their justiWcation for abortion rights, far from carrying a non-traditional message about women’s rights, relies upon and reinforces some of the most traditional components of motherhood by invoking the principles of ‘lifeboat’ ethics

The traditional model of motherhood depicts women in a nurturing relationship with the fetus and with others in need of care The key to this relationship is that there is no inherent conXict between any of the parties What creates diYculties for those in the relationship is an external context

deWned by a scarcity of resources In order to fulWll her role as nurturer, a woman is forced to choose how to provide the greatest good for the greatest

number; to do so, she must make a calculation of whom or what to sacriWce Presumably, she would gladly sacriWce herself, if this would be most beneW-cial to all concerned, which, in the case of an abortion, could include the decision to continue a pregnancy However, when using the traditional model of motherhood to justify the non-traditional goal of obtaining an abortion, it turns out that the pro-choice utility calculation can indicate that the best way to help the most people is to sacriWce the fetus by aborting it

From a political vantage point, this is a strategic way to ‘have your cake and eat it too’, since such a justiWcation leaves in place traditional cultural assumptions about women as care-givers, even while expanding the non-traditional options open to women in the form of the right to an abortion as

an instrument of care-giving not to the fetus, of course, but to others We can see a good example of the use of a traditional model of motherhood as a means to achieve the non-traditional goal of abortion rights in the way Kate Michelman, long-term President of the National Abortion Rights Action Leagues (NARAL), justiWes her own abortion Michelman is a master-politi-cian, one who has been in the limelight for decades, representing pro-choice positions What is signiWcant about Kate Michelman, therefore, is that when she tells her story about why she obtained an abortion, that story reveals a premise that the best way to present the abortion issue is to embed it within a traditional model of motherhood To put it another way, Michelman’s justiWcation for abortion exempliWes the political power of obtaining non-traditional goals for women by infusing those goals with the most non-traditional imagery associated with women

Kate Michelman explains how she became acutely aware in 1977 about the need for women to have the right to obtain an abortion In her words:

I was a thirty-year-old mother of three, pregnant with my fourth child, when my husband left me for another woman I had hoped to have six children, but I had no car, couldn’t get credit, and no longer had a husband to provide for me and my children I could not feed the three children I already had, much less support an additional child At that moment I understood the kinds of choices women have to make and how they aVect the very fabric of a woman’s life I decided to get an abortion (in Tribe, 1990: p 134.)

What is most signiWcant about this very strategic, political story is that Kate Michelman embeds the right to an abortion in a very traditional model of motherhood Michelman’s story employs a traditional view of a woman whose identity is deWned in terms of her childbearing goals, child care responsibilities and economic dependency on a husband The key to this story is to discern what justiWes the non-traditional act of killing the fetus The answer is that Michelman deWnes motherhood traditionally as a nurtur-ing set of relationships in which there is a scarcity of resources She lacks a husband, a car, credit and the economic resources to feed and care for an

additional child Something has to be sacriWced if any are to survive The killing of the fetus by means of an abortion, therefore, is justiWed as a sacriWce necessary for the survival, if not the good, of the greater whole The fetus must be sacriWced by the mother in order for the mother to be able to continue the nurturing of the other children already born Thus, rather than the mother nurturing the fourth child, the fourth child, the fetus, must be sacriWced

Lifeboat ethics and justification for killing

Michelman’s story not only illustrates a traditional view of motherhood in the context of obtaining a non-traditional goal for women – abortion rights –

it also corresponds to a speciWc ethical model that justiWes killing – lifeboat ethics The Model Penal Code (Philadelphia: American Law Institute), pre-pared and published by the highly respected American Law Institute, analyses the lifeboat model in terms of a justiWed choice of evils The context of the lifeboat model involves a situation in which the homicidal actions of an individual that ordinarily would be criminal are nevertheless defensible because these acts are the only way to save other lives As stated in the Code,

‘conduct that results in taking life may promote the very value [life] sought to

be protected by the law of homicide’ in theWrst place The example provided

by the Model Penal Code is:

[Suppose someone] makes a breach in a dike, knowing that this will inundate a farm, but taking the only course available to save a whole town If he is charged with homicide of the inhabitants of the farm house, he can rightly point out that the object

of the law of homicide is to save life, and that by his conduct he has e Vected a net saving of innocent lives The life of every individual must be taken in such a case to be

of equal value and the numerical preponderance in the lives saved compared to those sacri Wced surely should establish legal justiWcation.

In other words, the lifeboat model justiWes killing when the sacriWce of one life is necessary to secure the lives of a greater number As Dame Mary Warnock asserts, when faced with a choice of two people dying, or one person dying at the expense of another, the decision is easy – though it is the lesser of two evils, the latter is preferable to the former As the journalist Polly Toynbee (2000) notes, the ethicist Professor Bernard Williams oVers these hypotheticals in support of the view that it is preferable to sacriWce the lives of

a few if necessary to save the lives of many For example, if ice cave explorers Wnd themselves trapped and the only way to escape is to kill one of their members so that the rest may live, then it is ethical to do so because this is a situation that is ‘an unavoidable emergency [that is] of no one’s contriv-ing’ Similarly, if a rail trolley is speeding toward a man pinned to the tracks,

it is imperative to change onto another track to avoid killing him; however, if the other track in question had Wve men pinned to it, then it would be

preferable, and thus permissible, to stay on the original track in order to save theWve men at the expense of one

Of course, real-life examples involving more than hypotheticals are excru-ciating in their complexity A recent example in the UK concerned the decision whether to separate conjoined twins, Mary and Jodie (false names used to protect their identity), who were joined at the lower abdomen and who shared one set of lungs and heart Their separation absolutely entailed the death of one, but failure to separate most likely would have entailed the death of both within six months, due to the strain of supporting two lives on only one set of heart and lungs As the journalist Steven Morris (2000) observes, ethicists approach this problem in two ways Utilitarians believe it is more ethical to ‘save one life even at the cost of another’ However, ab-solutists (Morris, 2000) take a diVerent stance, asserting that ‘it can never be right to sacriWce a life [As] [t]he Archbishop of Westminister Cormac Murphy-O’Connor, said: ‘‘There is a fundamental moral principle at stake

no one may commit a wrong action that good may come of it’’ ’

The law of some nations, however, does allow for the separation of conjoined twins, even when the operation necessarily entails the loss of life

of one of them In 1993, for example, doctors at the Children’s Hospital of Philadelphia, USA, made the diYcult decision to separate conjoined twins, knowing full well that this would mean the death of one of them However, doctors believed that both twins would die unless this operation was conduc-ted, so with the permission of the parents of the twins, they separated them; one died as a result of the operation, and the other one lived for ten months after the operation According to Mr Justice Johnson, however, who gave the initial High Court judgment in the case of the conjoined twins born in the

UK, ‘The court would never authorise a step to actively terminate a life, even

to relieve misery, [but would authorise] treatment to be withdrawn, even if this leads to death’ (The Court of Appeal permitted the operation to proceed, but overruled Johnson’s reasoning insofar as it relied on this implicit parallel between the healthy twin as a ‘life-support’ device and a ventilator, which can lawfully be withdrawn.)

In the US, although the lifeboat model has its complications, it neverthe-less underlies pro-choice arguments that seek to justify why a woman has a right to kill the fetus This justiWcation legally and culturally maps onto a traditional model of motherhood, because the nurturing aspect of the woman seeking an abortion is not the issue Initially, the presumption is that everyone in the lifeboat is in harmony with everyone else As Michelman puts

it, she was a 30-year-old mother of three, pregnant with her fourth child, planning to have a total of six children, who had assumed the economic support of a husband The initial situation is one of traditional, harmonious, family life More broadly, we can characterize this type of justiWcation as a sacriWce model having four main components:

(1) It applies to a situation where there is a group – more than one person –

in a closed system, context, or environment, such as a lifeboat, having no access to outside resources

(2) In the closed system there are not enough resources to go around to take care of everyone; hence, someone or something in the group must be sacriWced for the sake of the greater whole

(3) There is no necessary adversarial relationship between any of the entities

in the closed system Thus, the lifeboat model can be an environment of harmony and love, but it is also a tragic one because there are not enough resources for everyone to survive Thus, in order for the greater number

to survive, there has to be some sort of sacriWce that will make it possible for more rather than fewer to continue their existence In the context of the abortion debate, the entity that is sacriWced is the fetus

(4) Perhaps most importantly, the lifeboat model of sacriWce is consistent with a traditional image of women whose primary concern is a relational one, based on how to meet the needs of others Hence, one of the most strategically powerful characteristics of the lifeboat model as a justi Wca-tion for aborWca-tion rights is that it involves no role change for women Women who choose an abortion do so in order to be good mothers to children already born or ones who will be born at a later time Abortion becomes a means of providing for, or taking care of, others The problem

is deWned simply in terms of being a mother with too many to care for, and without adequate resources The only solution is to sacriWce one entity, the fetus, in order to be able to nurture others Such a sacriWce

aYrms rather than challenges maternal norms and roles for women

The problem with the sacrifice model

The problem with the sacriWce model of motherhood, however, is that it cannot be used to argue for the need for abortion funding In a normal lifeboat scenario, no one calls upon the state to help toss someone overboard Rather, the hope is that the state will provide the resources necessary to avert the lifeboat crisis altogether That is, the lifeboat model implies that if the state arrives in the form of outside assistance, then everyone in the lifeboat can survive If the state could provide a conjoined twin with a needed heart and lungs, for example, that would obviate the question of sacriWcing the life

of one twin for the sake of the other; such a solution, obviously, is inWnitely preferable to deciding the ethical and legal issues implied in killing the one twin who lacks those vital organs in order to save the other twin who has them Similarly, if the state could arrive in time to save all ice cave explorers, thereby obliterating the need to sacriWce the life of one in order to save the lives of the others, that would solve the ethical and legal complications of the sacriWce model; there would be no longer a justiWcation for killing one of the ice cave explorers because there would no longer be a context lacking resources for all

So, too, in all lifeboat contexts If by a miracle, or by state action, the lifeboat context can be eliminated and there can be enough resources to provide for all in the lifeboat, then the rationale for sacriWcing a member of the group disappears, and with that disappearance, the language of justi Wca-tion for the killing of anyone or anything no longer applies This is because the key principle in a lifeboat context is that there is no initial or inherent conXict among the parties, only a contextual lack of resources

Abortion and the traditional model of motherhood

The use by pro-choice advocates of the sacriWcial, lifeboat model for abortion rights, therefore, is a double-edged sword On the one hand, its strength is that it can justify abortion in a context of scarcity that employs a model of motherhood involving no role change for women Women can be depicted as justiWed in seeking an abortion, without ever raising the issue of a conXict between the mother and the fetus A woman seeks an abortion, as Kate Michelman presents it, because she lacks the resources to be a good mother at that particular time in her life She does not have the time, money or educational requisites, so the fetus is sacriWced in order that she and others for whom she is responsible can survive Use of a traditional model of motherhood to justify the right to an abortion is a crucial source of political power It allows pro-choice advocates to meet pro-life advocates on the same footing, by arguing that pro-choice women are dedicated to being good mothers, and that obtaining an abortion is a necessary means a woman must sometimes use in order to be a good mother Invoking traditional role norms for women in the context of justifying the right to an abortion has been an

eVective use of traditional roles to gain non-traditional goals

On the other hand, there has been a seriousXaw in the formula that links traditional roles for women with the right to an abortion Most signiWcant is that such a justiWcation contains no principle that can be used to claim the right to state assistance in providing an abortion, that is, killing the fetus In contrast, the lifeboat model argues just the opposite; the purpose of state assistance is to provide resources so that it is not necessary for anyone or anything to be sacriWced in a lifeboat scenario; the state’s job is to solve the problem of scarce resources so that all may survive In this respect, the lifeboat model provides a better argument for funding childbirth than it does for funding an abortion

Thus, toWnd a solution to the problem of access to abortion, including abortion funding, we must turn to a diVerent model of motherhood, one that employs non-traditional roles for women and one that activates the other major justiWcation for killing – self-defence

The non-traditional model of motherhood and abortion rights The non-traditional model of motherhood

The key issue in redeWning the problem of abortion is to recognize that medically and legally pregnancy is a condition in a woman’s body ‘resulting from the presence of the fetus’ What is more, pregnancy is a condition that massively alters and transforms a woman’s body and liberty SpeciWc hor-mones and proteins in a woman’s body, for example, are elevated to hun-dreds of times their base level, thereby indicating that a fertilized ovum is present and aVecting her body While most of the changes resulting from the fetus’s eVects on a woman’s body subside about a month after birth, a ‘few minor alterations persist throughout life’ In a medically normal pregnancy: some hormones in a woman’s body rise to 400 times their base level; a new organ, the placenta, grows in her body; all of her blood is rerouted to be available to the growing fetus; her blood plasma and cardiac volume increase

40 per cent; and her heart rate increases 15 per cent These are just a few of the massive changes that ordinarily result from the fetus’s eVects

From choice to consent

In Roe, the Court established that the fetus was a separate entity from the

woman and that it was constitutional for the state to protect the fetus With this in mind, the key issue in redeWning abortion rights is to recognize that it follows that a woman not only has a right to choose what to do with her own body, but also a right to consent to the transformations of her body and her liberty resulting from the fetus as a separate, state-protected entity If we accept that the fetus is indeed a separate entity, a move which pro-choice advocates have more typically resisted, we can actually derive a novel pro-choice argument The traditional common-law position, still the dominant one in English law, is that the fetus has no separate legal personality: ‘until born alive, a foetus is not a legal person’ (Montgomery, 1997: p 401) In American constitutional law, the Supreme Court has refused to rule on whether the fetus is a person, stating only that even if the fetus were a person,

it would not be included in the protections of the Constitution because the Fourteenth Amendment refers to ‘born’ persons Thus, at the moment, in the United States the fetus lacks a legal, personhood status Yet it is constitutional for the state to protect the fetus, which means that the fetus is in a category with other entities that are not legally people but are nevertheless under state protection, such as endangered wildlife species

What the consent argument does is to hoist anti-abortion campaigners with their own petard by focusing not merely on what the fetus ‘is’, but on what the fetus ‘does’ Whether the fetus is or is not a person, what it ‘does’ is